U.S. v. Beard

• Decision Date: 28 June 1999
• Docket Number: No. CRIM. 99-50005.,CRIM. 99-50005.
• Citation: 58 F.Supp.2d 747
• Parties: UNITED STATES of America, Plaintiff, v. Odell BEARD, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

58 F.Supp.2d 747

UNITED STATES of America, Plaintiff, v. Odell BEARD, Defendant.

No. CRIM. 99-50005.

United States District Court, E.D. Michigan, Southern Division.

June 28, 1999.

Kenneth S. Karasick, Flint, MI, for Odell Beard, defendant.

Mark C. Jones, U.S. Attys. Office, Flint, MI, for U.S.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

GADOLA, District Judge.

Presently before the Court is defendant Odell Beard's motion to suppress evidence filed May 7, 1999. Defendant challenges the seizure of evidence pursuant to a search warrant executed on January 5, 1999 at defendant's residence located at 5910 Oxley, Flint, Michigan. Specifically, defendant attacks the affidavit in support of the search warrant as lacking in sufficient facts to allow a finding of probable cause. The government responded on May 18, 1999. No reply brief has been filed by defendant. Oral argument on the instant motion previously scheduled for June 11, 1999 was canceled upon stipulation of the parties. See order entered May 26, 1999. Accordingly, the instant motion will be decided on the briefs previously submitted by the respective parties.

For the reasons set forth below, the Court will deny defendant's motion to suppress evidence.

I. FACTUAL BACKGROUND

On February 3, 1999, the government filed a three-count indictment against defendant. The three-count indictment alleges that defendant committed the following offenses: (1) possession of sawed-off shotguns in violation of 26 U.S.C. §§ 5861(d), 5845(a), and 5871 (Count I); (2) possession of firearms without serial number in violation of 26 U.S.C. §§ 5861(i) and 5871 (Count II); and (3) possession of stolen firearm (Count III).

Previously, on January 5, 1999, police officers executed a search warrant at defendant's residence, located at 5910 Oxley, Flint, Michigan. The search warrant at issue provides a list of locations to be searched, including "5910 Oxley and attached garage/Flint, Michigan." See Search Warrant, p. 2, attached as Exh. 2 to the government's brief in response. The warrant also provides a description of target items categorized as (a) drugs and drug paraphernalia, (b) guns and gun paraphernalia, (c) records, (d) bloodied clothing, (e) U.S. currency, (f) records of ownership. See id. pp. 6-7. The following items were seized from defendant's residence: two sawed-off shotguns without serial numbers and one .357 revolver with serial number. The revolver was later determined to have been stolen.

The application and affidavit for search warrant were prepared by Cedric A. Kendall, a Flint Police Department officer assigned to the Drug Enforcement Administration Task Force (DEATF) with eleven and one-half years' experience and four years' experience with the DEATF. See application and affidavit for search warrant (hereinafter "Affidavit"), attached as Exh. 2 to the government's brief in response, p. 7 ¶ 1. Officer Kendall asserts that he has had 10 years of experience in controlled substance investigations, has participated in numerous arrests resulting in felony convictions and has participated in the execution of over 100 search warrants involving trafficking of all types of controlled substances. See Affidavit, p. 7, ¶ 2. In addition, Officer Kendall maintains that he has received "formal education in the identification of all types of controlled substances and the customs and habits of users and dealers of the same." See Affidavit, p. 7, ¶ 3.

The affidavit at issue details the circumstances surrounding the murders of Lee David Strickland and his sister, Fanny Strickland. These two individuals were killed outside King's Fish and Barbeque, located at 3810 Clio Road, Flint Michigan on September 21, 1995. The affidavit further explains that Eric Williams was also severely wounded at the scene of the murders and that 80 grams of cocaine was seized at the murder scene. See Affidavit, p. 8, ¶ 4. Two suspects were subsequently indicted for the murders, Ervin Junius Thornton II and Tederick Lemair Jones. Officer Kendall testifies that he was very familiar with the Thornton investigation because he was one of the case agents involved in that matter. See Affidavit, p. 8, ¶ 6.

The Thornton trial was conducted in November 1998, the Honorable Paul V. Gadola, presiding. See U.S. v. Thornton, 17 F.Supp.2d 686 (E.D.Mich.1998) (Criminal Case No. 97-50021-01) (denying defendant Thornton's pretrial motion to suppress out-of-court statements made to police following indictment and arrest on murder and drug-related charges). During the trial, Tederick Lemair Jones testified against Thornton and received a considerable amount of Flint Journal coverage, despite the government's request that the newspaper not identify names of witnesses. As a result, it became a matter of common knowledge that a person named "Jones" (i.e., "Tederick Jones") had testified against one the larger drug dealers in Flint, to wit Ervin Junius Thornton II. On November 23, 1998, Thornton was convicted on all counts. See Affidavit, pp. 8-9, ¶¶ 8 and 9.

As the affidavit recounts, the other co-defendant with the last name of "Jones" also listed in the Thornton indictment was one Terence Bruce Jones. This defendant pleaded guilty on November 10, 1998 pursuant to a Rule 11 plea agreement. The fact that he had pleaded guilty was also reported in the Flint Journal with an explanation that several witnesses were expected to testify against Thornton. See Affidavit, pp. 8-9, ¶¶ 7 and 9.

Before giving any testimony, however, Terence Bruce Jones was murdered. On or about December 4, 1998, he was shot twice in the head at his residence located at 3108 Myrtle Road, Mt. Morris, Michigan. A pry-type tool had been used to gain entrance to the residence and blood from one of the suspects was left at the scene. The blood in the residence raised the possibility of blood samples being used for analysis. See Affidavit, pp. 9-10, ¶ 10. While the officers were at the murder scene, they had contact with one Terrell Deshon Hunter. The officers overheard another individual asking Mr. Hunter if he had murdered Terence Bruce Jones. See Affidavit, pp. 9-10, ¶¶ 9 and 10.

The affidavit further states that the police believed that Terence Bruce Jones, the decedent, was a drug dealer. On January 15, 1997, a search warrant was executed at one of his prior residences. At that location, approximately 64.5 grams of marijuana was seized along with drug paraphernalia and a handgun. In addition, Terence Bruce Jones had previously admitted to being a drug dealer. See Affidavit, p. 8, ¶ 7.

The affidavit explains that on December 4 and 7, 1998, Detective Sergeant Dunklee spoke with one Angelia Akins. Ms. Akins was the paramour of the deceased, and as such well-familiar with his activities. Affiant asserts that "[s]ince Mr. Jones was under federal indictment, his drug supplier was undoubtedly concerned with whether he would cooperate." See Affidavit, p. 9, ¶ 10(c). Ms. Akins allegedly identified Terence Bruce Jones's supplier as an individual named "O'Dell" (later identified as defendant Odell Beard, residing at 5910 Oxley, Flint, Michigan). Id. Ms. Akins purportedly stated that defendant Beard had been selling two to four pounds of marijuana per day since the last day he had been in court, i.e. since November 10, 1998. Id.

The affiant further explains that Captain Jerome Koger of the Flint Police Department had observed defendant Beard at 5910 Oxley, Flint, Michigan during the last 20 years, confirming that defendant resided at that location. Captain Koger also allegedly told the affiant that the Flint Police Department had received information from an informant that on many occasions defendant had received hundreds of pounds of marijuana from "down south" to sell in Flint, Michigan. See Affidavit, p. 10, ¶ 10(d).

Information was also provided in the affidavit regarding "June," later identified as Leon Truman Spight, Jr., another suspect in the murder of Terence Bruce Jones. See Affidavit, p. 10, ¶ 12. An anonymous informant had telephoned Detective Sergeant Dunklee at the Mt. Morris Township police station. The informant stated that "June," in the company of another unidentified person, had abandoned June's gray four-door Cadillac after the murder upon developing car trouble. The informant had allegedly seen them running from the vehicle after the murder which occurred on December 3, 1998. Id.

The affidavit also discusses information provided by Tederick Jones relating to other drug traffickers. See Affidavit, pp. 9-13. The affidavit concludes with a discussion of Law Enforcement Information Network (LEIN) information regarding various persons previously mentioned in the affidavit. See Affidavit, pp. 15-18. Included in the LEIN information were specifics regarding defendant, showing that he had several vehicles registered to 5910 Oxley, Flint, Michigan and that he was using the location as his current address. See Affidavit, p. 15, ¶ 20.

II. STANDARD OF REVIEW

The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...." U.S. CONST. amend. IV. Probable cause to search has been defined as a "fair probability" that contraband or other evidence of a crime will be found at the place to be searched. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also United States v. Savoca, 761 F.2d 292, 297 (6th Cir.1985) (holding that the "critical element in a reasonable search ... is reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought") (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), cert. denied, 474 U.S. 852, 106 S.Ct. 153, 88 L.Ed.2d 126 (1985); United States v. Lockett, 674 F.2d 843 (11th Cir.1982) (holding that the evidence was insufficient to support a finding...